Docket: T-757-11
Citation: 2012 FC 294
Ottawa, Ontario, March 7,
2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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CECILIA FITZPATRICK
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Applicant
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and
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JIM BOUCHER
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
RSC 1985, c F-7, for judicial review of a decision of an appeal arbitrator,
dated May 2, 2011, in the matter of the April 5, 2011 election of Jim Boucher as
Chief of the Fort McKay First Nation.
[2]
In
the election, Cecilia Fitzpatrick (the applicant) and Jim Boucher (the
respondent) were the sole candidates of the Fort McKay First Nation for Chief.
The respondent won the election by a narrow margin (one vote). The applicant
appealed the election based on six allegedly invalid votes that could have
affected the result. The appeal arbitrator rejected the applicant’s appeal,
basing his decision on the interpretation of provisions of the Election Code of the Fort McKay First Nation (the
Election Code).
[3]
The applicant requests that this Court order a new election for
Chief of
the Fort McKay First Nation. Specifically, the
applicant requests the following relief:
1. an order that
the appeal
arbitrator erred in law in interpreting the Election
Code of the Fort McKay First Nation and acted
beyond his jurisdiction in making his decision regarding the election of Chief of
the Fort McKay First Nation;
2. an order
quashing the election of Jim Boucher as Chief of the Fort McKay First Nation and directing a new election for Chief of the Fort
McKay First Nation;
3. costs of the
proceeding to the applicant on a solicitor-client basis; and
4. such further
and other orders as the Court shall deem just and convenient in the
circumstances.
Background
General Election
[4]
The
procedure for general elections is set out in Part 1 (sections 2 to 21) of the Election Code.
[5]
On
April 5, 2011, a general election was held for Chief
and Councillors of the Fort McKay First Nation. Prior to the election
and pursuant to section 5.1 of the Election Code, the Fort McKay First Nation
Council appointed as returning officer, Kelsey Becker Brookes, barrister
and solicitor practicing in the area of municipal law. The returning officer’s
duties are listed in section 7 of the Election Code. In addition to specific
duties, the returning officer’s duties broadly include “all other things
necessary for the conduct of an election” (section 7.1.11 of the Election Code).
[6]
In
the April 2011 election, the applicant and respondent were the sole candidates
for Chief. The applicant received 162 votes and the respondent received 163
votes. A recount of the ballots for Chief confirmed these results. The
respondent was therefore elected Chief of the Fort McKay First Nation. On April
20, 2011, the applicant filed an appeal of the election of the respondent as
Chief.
Appeal Procedure
[7]
Election
appeals are covered under Part 7 (sections 78 to 90) of the Election Code.
Prior to the election, the returning officer must appoint an appeal arbitrator
to determine any controversies arising from an election (section 78.1 of the
Election Code). Accordingly, the returning officer appointed Frank Foran, Q.C.
as appeal arbitrator for the April 2011 election.
Grounds of Appeal
[8]
Permitted
grounds of appeal are listed under section 81.1 of the Election Code. The
applicant’s notice of appeal sets out two grounds of appeal:
1. The returning officer
erred in her interpretation and application of sections 57, 81.1.1 and 81.1.2
of the Election Code; and
2. The requirement to
produce photograph identification to confirm identities was inconsistently
applied such that some individuals who did not produce photograph
identification were allowed to cast ballots, whereas others that did produce
photograph identification were not permitted to cast ballots.
[9]
This
application focuses on the first ground of appeal, which pertains to the voting
procedure and associated form (Form 11) established by the recording officer
for incapacitated electors. The recording officer established this
procedure based on her interpretation of section 57 of the Election Code. Form
11 is very similar to that used under the Local Authorities Election Act,
RSA 2000, c L-20 for municipal elections in Alberta.
[10]
The
voting procedure established by the recording officer permitted incapacitated
electors to specify an individual to assist them in marking their ballot. The
procedure provided that the recording officer would ask the incapacitated
elector whether they needed help to mark their ballot, and whether they wanted
the specified individual to help them. If the incapacitated elector responded
affirmatively, the recording officer would initial Form 11 and would then require
the specified individual to fill in a statement that provided that:
1. he or she was a friend or
relative of the incapacitated elector and;
2. he or she would:
(a) read the
ballot to the incapacitated elector;
(b) mark the
ballot in accordance with the incapacitated elector’s instructions; and
(c) keep secret
all information that might come to them by virtue of providing the
assistance.
[11]
Upon
this statement being filled in and signed by the specified individual, the
recording officer would initial the statement. Form 11 was then attached to the
voting register and the specified individual would assist the incapacitated
elector in marking his or her ballot.
[12]
At
the general election of April 5, 2011, this voting procedure for incapacitated
electors was employed on six separate occasions at the Fort McKay voting station.
Although all six occasions were at issue, particular attention was drawn at the
appeal hearing to Elder Maggie Bouchier, a blind elector, who voted with the
aid of her cousin, Martha Powder. Martha Powder is allegedly a supporter of the
respondent, whereas Elder Maggie Bouchier is allegedly a supporter of the
applicant. However, Elder Maggie Bouchier did not volunteer who she voted for
in the appeal hearings. Neither party was able to request that she do so,
because the Election Code specifically provides that no person can be required
to disclose the particular candidate that they voted for (section 39.1).
Appeal Arbitrator’s Decision
[13]
The
hearing of the applicant’s appeal was held on April 27, 2011. On May 2, 2011,
the appeal arbitrator released his decision and reasons. In his decision, the
appeal arbitrator dismissed both of the applicant’s grounds of appeal.
Standard of Review
[14]
The
first ground of appeal is the sole ground at issue in this judicial review.
This ground of appeal focused on the returning officer’s interpretation and
application of section 57 of the Election Code. The appeal arbitrator held that
the interpretation of this section is, or is primarily, a question of law, and
the appropriate standard of review is therefore correctness.
Interpretation of Section 57.1
[15]
The
appeal arbitrator focused on the use of the word “may” in section 57.1 of the
Election Code, deeming it permissive rather than mandatory. Section 57.1
states:
The
returning officer, at the request of an elector who is unable to read or is
incapacitated by blindness or another physical condition from marking the
elector’s ballot in the usual manner may, at the elector’s request, mark
the vote of that elector on the elector’s ballot in the manner directed by that
elector, and shall immediately deposit the ballot in the ballot box. [emphasis
added]
[16]
The
appeal arbitrator held that this provision does not limit who the incapacitated
elector may request to mark his or her ballot – rather, it merely permits the
incapacitated elector to request, amongst other individuals, that the returning
officer mark his or her ballot. The appeal arbitrator found further support for
this interpretation in section 57.2 of the Election Code, which states:
No
candidate or agent shall be present in the voting compartment at the
marking of a ballot under this section. [emphasis added]
[17]
The
appeal arbitrator held that if section 57.1 restricted the incapacitated
elector’s choice to only the returning officer, then section 57.2 would be
unnecessary.
[18]
The
appeal arbitrator also relied on section 38.1 to support his interpretation of
section 57.1. Section 38.1 of the Election Code states:
While
an elector is in a voting compartment for the purpose of marking the elector’s
ballot, no other person, except a person who has been permitted to
assist an incapacitated elector, may enter the voting compartment or be in
a position from which the person can see how the elector marks the elector’s
ballot. [emphasis added]
[19]
According
to the appeal arbitrator, the reference to “a person” as opposed to the
“returning officer” in this provision enforced his interpretation of section
57.1 as not being limited to the returning officer.
[20]
The
appeal arbitrator also addressed the returning officer’s preparation of Form
11. At the appeal hearing, the returning officer stated that she prepared this
form so that proper precautions were in place to ensure ballots were marked
appropriately. She also stated that individuals are often more comfortable
having a friend or relative mark their ballot than someone, such as the
returning officer, whom they do not personally know. The appeal arbitrator held
that the preparation of Form 11 did not offend section 57.1 of the Election
Code. In rendering this decision, he also relied on section 7.1 of the Election
Code which broadly empowers the returning officer to “do all things necessary
for the conduct of an election”.
[21]
In
summary, based on his interpretation of the relevant provisions of the Election
Code, the appeal arbitrator rejected the applicant’s first ground of appeal.
Relief had there been a Breach of Section 57.1
of the Election Code
[22]
Although
the appeal arbitrator found no breach of section 57.1, he included in his
reasons a discussion of appropriate remedies had he found the opposite to be
true. The appeal arbitrator acknowledged that as the respondent only won the
election by a margin of one vote, a breach of section 57.1 may have affected
the result. However, as there was no evidence regarding which candidate received
the votes of the six incapacitated electors, the appeal arbitrator held that he
would have ordered a new election for Chief. As the appeal arbitrator found no
breach of section 57.1, no such order was made.
Costs of Appeal
[23]
The
appeal arbitrator did not find that the appeal was so lacking in merit such as
to constitute an abuse in process. Therefore, pursuant to section 79.1 of the
Election Code, the appeal arbitrator held that the Fort McKay First Nation
should be responsible for the payment of the costs of the appeal.
Issues
[24]
The
respondent specified the following issues in his memorandum of fact and law,
which I think appropriately address the submissions of both parties:
1. What is the standard of
review?
2. Did the appeal arbitrator
err in his interpretation of section 57.1 of the Election Code?
3. Did the appeal arbitrator
err in not granting relief?
Applicant’s Written Submissions
Interpretation of Section 57.1 of the Election
Code
[25]
The
applicant submits that the returning officer incorrectly interpreted section
57.1 of the Election Code. The applicant submits that the correct
interpretation of this provision provides that only the returning officer may
assist an incapacitated elector in marking a voting ballot. Therefore, as
incapacitated electors were aided by individuals other than the returning
officer on six separate occasions in the April 2011 election, the applicant
submits that these votes were unlawful. Cconsequently, those six incapacitated
electors became ineligible voters.
[26]
The applicant
relies on three other provisions of the Election Code to support her interpretation
of section 57.1: section 48.1, section 51 and section 54.3.
[27]
Section
48.1 of the Election Code falls under the heading, “Persons at voting station”
and states:
Except
for the returning officer, election officials, agents of candidates authorized
to attend at the voting station and the electors who are for the time being
actually engaged in voting, no other person is entitled to be present,
nor shall any other person be permitted to be present, in the voting station
during the time appointed for voting. …[emphasis added]
[28]
The
applicant submits that the presence of other individuals at the voting station
to assist the incapacitated electors was contrary to section 48.1 and thus
unlawful.
[29]
The
applicant also relies on section 51 of the Election Code which pertains to
interpreters for electors that do not understand the English language. Section
51.2 of the Election Code states:
The
interpreter may not be an elector or member.
[30]
The
applicant submits that this section provides that individuals who assist voters
cannot be electors or members.
[31]
The
applicant also relies on section 51.2 of the Election Code in her submission
that the appeal arbitrator erred in his interpretation of the word “may” in
section 57.1. The applicant submits that the entire context of the Election
Code, including section 51.2, must be considered when interpreting this word in
section 57.1. Where this is done, the applicant submits that it is clear that
no other voters could be at the polling booth with an incapacitated elector.
[32]
Finally,
the applicant submits that section 54.3 of the Election Code also only permits
the returning officer or her agent to take the vote of the elector. This
section pertains to electors who are shut in, in hospital or otherwise
incapable of physically attending at a voting station on the advance voting
day. It provides that the returning officer or her agent may attend these
electors to receive their advance vote.
[33]
In
summary, the applicant submits that the appeal arbitrator incorrectly dismissed
the appeal based on his opinion that the returning officer could alter the
procedure of the Election Code. According to the applicant, this is contrary to
the provisions of the Election Code.
Granting of Relief
[34]
The
applicant submits that the appeal arbitrator erred in concluding that the
breach of section 57.1 of the Election Code by six incapacitated electors did
not result in a converted election requiring a new election for Chief. The
applicant cites a number of cases to support her submission that the number of
votes at issue in this application, coupled with the narrow margin by which the
respondent was elected Chief, is sufficient to void the April 2011 election of
Chief of the Fort McKay First Nation.
Respondent’s Written Submissions
Standard of Review
[35]
The
respondent submits that the proper standard of review in cases concerning
election appeals is correctness.
Interpretation of Section 57.1 of the Election
Code
[36]
The
respondent’s argument relies primarily on rules of statutory interpretation.
[37]
The
respondent submits that the applicant’s interpretation of section 57.1 of the
Election Code does not conform to accepted principles of statutory
interpretation and legislative construction. Rather, the respondent submits
that the correct interpretation was provided in the appeal arbitrator’s
decision. That interpretation holds that section 57.1 does not limit who the
incapacitated elector may request to mark his or her ballot. Similarly to the
appeal arbitrator’s finding, the respondent submits that section 57.1 is
permissive rather than mandatory and therefore only operative where the
incapacitated elector requests the assistance of the returning officer. Where no
such request is made, the respondent submits that the returning officer does
not have a duty, or the discretion, to require that an incapacitated elector
seek their assistance in voting.
[38]
In
response to the applicant’s reliance on section 48.1, section 51 and section 54.3
to support her interpretation of section 57.1, the respondent submits that none
of these sections address incapacitated voters.
[39]
With
regards to section 48.1 of the Election Code, the respondent submits that an
accepted principle of legislative construction is that provisions addressing
the specific subject are to be preferred over general provisions dealing with
the same subject matter. Therefore, the respondent submits that the specific
provision addressing incapacitated electors (section 57.1) should prevail over
the more general provision (section 48.1). In addition, the respondent submits
that section 48.1 is consistent with section 57.1 by permitting those that
accompany and assist an incapacitated elector to remain in the voting station
as long as they are assisting the elector and are not merely loitering there.
[40]
The
respondent also submits that sections 51 and 54.3 do not apply or assist in the
interpretation of the Election Code provisions regarding incapacitated
electors.
Granting of Relief
[41]
The
respondent submits that as the appeal arbitrator found no breach of the
Election Code, no relief should be granted.
[42]
In
the alternative, if the Court finds that a breach did occur, the respondent
submits that the Court, on judicial review, has the discretion to grant a
remedy appropriate to the circumstances. The respondent refers to existing jurisprudence
in which the Court has upheld the results of a flawed election process where
broad interests outweigh the unjustified disruption within a Band that would
occur if a new election was ordered.
[43]
Finally,
the respondent submits that even if the appeal arbitrator had ordered that a
new election be held, the Court is not precluded from denying such relief.
Analysis and Decision
Standard of Review
[44]
Where
previous jurisprudence has determined the standard of review applicable to a
particular issue before the Court, the reviewing court may adopt that standard
(see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57).
[45]
In
this application, the main issue is whether the appeal arbitrator correctly
interpreted section 57.1 of the Election Code. It is established law that the
standard of review for an appeal committee’s legal interpretation of what
constitutes a corrupt election practice under an Aboriginal customary election
regulation is correctness (see Giroux v Swan River First Nation, 2006 FC
285, [2006] FCJ No 406 at paragraph 55; and Wilson v Ross, 2008 FC 1173,
[2008] FCJ No 1456 at paragraph 26).
[46]
In
reviewing the appeal arbitrator’s decision on the standard of correctness, the
Court must not show deference to the appeal arbitrator’s reasoning process.
Rather, the Court must undertake its own analysis of the question at issue. If
the Court does not agree with the appeal arbitrator’s decision, it must substitute
its own view and provide the correct answer (see Dunsmuir above, at
paragraph 50).
Interpretation of Section 57.1 of the Election
Code
[47]
The
interpretation of section 57.1 is the primary issue in this application. This
is due to the recognized overriding aim of election statutes to promote the
right to vote (see Keefe v. Pukanich, 2007 NWTSC 90, [2007] NWTJ No 92
at paragraphs 12 and 33). Therefore, courts have generally been careful not to
interfere with an election if reasonable efforts have been made to comply with
statutory requirements. However, where an irregularity, such as voting by
unqualified electors, could affect the election result, courts have required
strict compliance with the statutory procedures (see Keefe above at
paragraphs 14 and 15; and Camsell v Rabesca, [1987] NWTR 186 at page 8).
[48]
In
this application, if the applicant’s interpretation of section 57.1 of the
Election Code is correct, the six incapacitated electors’ votes would not be in
compliance with the statutory procedure. There would therefore be sufficient
votes by unqualified persons to affect the one vote margin by which the
respondent was elected Chief (see Foley v Wooff, [1961] SJ No 6 at
paragraph 13; and Lamb v McLeod (1932) 3 WWR 596 at page 602).
Therefore, the interpretation of section 57.1 of the Election Code and
corresponding determination of whether the incapacitated electors where
unqualified to vote, lies at the core of this application.
[49]
The
Supreme Court of Canada has adopted the modern approach to statutory
interpretation as the prevailing and preferred approach to statutory
interpretation (see Bell ExpressVu Ltd. Partnership v Rex, 2002 SCC 42
at paragraph 26). This approach must be applied when interpreting section 57.1
of the Election Code.
[50]
In
her submission, the applicant relied primarily on three separate sections of
the Election Code (48.1, 51 and 54.3) to support her interpretation of section
57.1. Section 48.1 broadly mandates who is permitted at voting stations. The
applicant submits that this provision limits these individuals to the:
returning officer; election officials; agents of candidates authorized to
attend at the voting station; and electors while engaged in voting.
[51]
As
this provision makes no exception for individuals assisting an incapacitated
elector (other than the returning officer), the applicant submits that the
interpretation of who may assist an incapacitated elector under section 57.1 is
limited to the returning officer. In response, the respondent submits that the
accepted generalia specialibus non derogant principle of legislative
construction provides that provisions addressing a specific subject are to be
preferred over general provisions dealing with the same subject matter. Thus,
when it comes to the voting procedure for incapacitated electors, the more
specific section 57.1 should be preferred over the more general section 48.1.
[52]
In Vidéotron
Ltée v Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065,
at page 1080, Justice Gonthier observed that “[i]t is well settled that
specific rules prevail over general rules”. This rule of construction has also
been confirmed by Professor Sullivan in Sullivan and Driedger on the
Construction of Statutes, 4th ed, Toronto, Butterworths, 2002, at page 273:
When
two provisions are in conflict and one of them deals specifically with the
matter in question while the other is of more general application, the conflict
may be avoided by applying the specific provision to the exclusion of the more
general one.
[53]
In
this application, section 48.1 generally applies to persons who may be present
at voting stations. However, section 57.1 more specifically applies to the
voting procedure for incapacitated electors and provides that no agent or
candidate shall be present in the voting compartment when the ballot is being
marked.
[54]
For
ease of reference, I will set out sections 48.1, 51 and 57 of the Election
Code:
48.
Persons at voting station
48.1.
Except for the returning officer, election officials, agents of candidates
authorized to attend at the voting station and the electors who are for the
time being actually engaged in voting, no other person is entitled to be
present, nor shall any other person be permitted to be present, in the voting
station during the time appointed for voting. For greater certainty, the
persons prohibited from the voting station include candidates, unless attending
for the purposes of casting their own vote, and members of the media.
51.
Interpreter
51.1.
If an elector does not understand the English language, the returning officer
may allow or appoint an interpreter to translate any statements, questions, or
documents as necessary to allow the elector to vote.
51.2.
The interpreter may not be an elector or member.
51.3.
Before acting as an interpreter, the interpreter shall make a statement in the
prescribed form.
51.4.
Where any elector has required the assistance of an interpreter, the returning
officer shall make a report in the prescribed form.
57.
Incapacitated elector at voting station
57.1.
The returning officer, at the request of an elector who is unable to read or is
incapacitated by blindness or another physical condition from marking the
elector’s ballot in the usual manner may, at the elector’s request, mark the
vote of that elector on the elector’s ballot in the manner directed by that
elector, and shall immediately deposit the ballot in the ballot box.
57.2.
No candidate or agent shall be present in the voting compartment at the marking
of a ballot under this section.
57.3.
When a ballot has been marked pursuant to this section, the returning officer
shall make a report in the prescribed form.
[55]
In
the present case, the ballots of six incapacitated voters were marked for them
by friends (or relatives) who accompanied them into the voting compartment. If
the applicant is correct that section 57.1 of the Election Code only permits
the returning officer to mark these voters’ ballots, then there has been a
breach of the Election Code on six different occasions and the appeal
arbitrator is in error.
[56]
The
respondent states that section 57.1 of the Election Code does not limit the
marking of the ballots of an incapacitated voter to the returning officer but
that others, such as a friend, can also mark the ballots.
[57]
I do
not agree with the respondent. In my view, the appeal arbitrator erred by
ruling that section 57.1 of the Election Code does not limit who the
incapacitated elector may ask to mark his or her ballot and that the section
merely permits the elector to ask the returning officer as but one possible
individual amongst others, to mark his or her ballot.
[58]
A
review of the relevant sections of the Election Code discloses the following.
Section 38.1 deals with secrecy in voting and provides that normally only the
elector can enter the voting compartment, however, if an elector is
incapacitated, the person permitted to assist the voter may also enter the
voting compartment. Section 48.1 states that only the returning officer,
election officer, agents of candidates and electors who are at the time
actually engaged in voting, are permitted to be in the polling stations during
voting. Candidates are not permitted in the voting station unless they are
casting their own vote.
[59]
Section
57 of the Election Code specifically deals with incapacitated electors at the
voting station. Section 57.1 permits an elector who is unable to read or is incapacitated
by blindess or another physical condition, thus, making him or her unable to
mark the ballot in the usual manner, to request that the returning officer mark
her or his vote on the ballot in the manner directed by the elector.
[60]
Section
57.2 of the Election Code prohibits any candidate or agent from being present
in the voting compartment at the marking of a ballot under section 57.1.
[61]
Against
this background, I must assess the facts of this case; namely, where an elector
entered the voting compartment and had his or her ballot marked by a friend or
relative instead of the returning officer, as provided for in section 57.1 of
the Election Code.
[62]
I do
not believe that it is in dispute that, under normal circumstances, an elector
must mark his or her own ballot. The present Election Code makes an exception
for incapacitated voters who may ask the returning officer to mark his or her
vote on the ballot in the manner directed by the elector. There is good reason
to require the elector to mark his or her own choice on the ballot as it
relates to a person’s right to vote for the candidate of his or her choice
without influence in the voting compartment from others.
[63]
Beginning
from the basic proposition that, to vote, a person must normally mark his or
her own ballot, then it follows that any exception to this procedure should be explicitly
stated in the Election Code. In the present case, there is such an exception
made for incapacitated voters to request that the returning officer mark their
choice on the ballot. However, there is no similar provision made for a friend
or relative to mark the elector’s choice on the ballot. Consequently, I must
conclude that only the returning officer can mark the incapacitated voter’s
choice on the ballot.
[64]
My
conclusion is further supported by section 48.1 of the Election Code, which clearly
prohibits an elector’s friend or relative to be present in the voting station,
let alone in the voting compartment. Thus, if section 57.1 of the Election Code
was understood as permitting an incapacitated elector to request that a friend
mark his or her ballot, it would contradict section 48.1 of the Election Code
which prohibits such an individual from even being present with the elector in
the voting compartment.
[65]
In
summary, I am of the view that the decision of the appeal arbitrator was in
error in ruling that an incapacitated voter’s ballot could be marked by a
person other than the returning officer. The number of votes in question in
this case are sufficient to void the outcome of the election of Chief. If the
votes are not legal, there is no way of knowing who the disallowed ballots were
cast for and this in turn would affect the outcome of the election as it would
be impossible to know which candidate received the most votes. In such
circumstances, courts have held that the election must be set aside. This is
the same conclusion reached by the appeal arbitrator in his alternative finding
at paragraph 126 of his decision.
[66]
As a
result, I conclude that the decision of the appeal arbitrator must be set aside
with respect to the election of Jim Boucher as Chief of Fort McKay First
Nation. I would direct a new election for Chief of the Fort McKay First Nation.
[67]
The
applicant has asked for costs on a solicitor-client basis. I am not prepared to
award costs on a solicitor-client basis. None of the facts of this case support
the award of solicitor-client costs. This case dealt primarily with the interpretation
of an election code with respect to voting by incapacitated voters. Any person
can err in such an interpretation and such an error should not be the basis of
an award of solicitor-client costs. I would award the costs of the application
to the applicant.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The decision of the appeal
arbitrator with respect to the election of Jim Boucher as Chief of Fort McKay
First Nation is set aside.
2. The election of Jim Boucher as
Chief of Fort McKay First Nation is quashed and set aside and a new election
for Chief of Fort McKay First Nation is ordered.
3. The applicant shall have costs
of the application.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Fort McKay First Nation Election Code
7.
Duties of returning officer
7.1.
In addition to performing the duties specified in this Code, a returning
officer shall: […]
7.1.11.
do all other things necessary for the conduct of an election.
38.
Secrecy of vote
38.1.
While an elector is in a voting compartment for the purpose of marking the
elector’s ballot, no other person, except a person who has been permitted to
assist an incapacitated elector, may enter the voting compartment or be in a
position from which the person can see how the elector marks the elector’s
ballot.
39.
Maintenance of secrecy
39.1.
No person shall be required to disclose in any proceedings, including
proceedings for a controverter election, whether the person has voted for a
particular candidate.
48.
Persons at voting station
48.1.
Except for the returning officer, election officials, agents of candidates
authorized to attend at the voting station and the electors who are for the
time being actually engaged in voting, no other person is entitled to be
present, nor shall any other person be permitted to be present, in the voting
station during the time appointed for voting. For greater certainty, the
persons prohibited from the voting station include candidates, unless attending
for the purposes of casting their own vote, and members of the media.
51.
Interpreter
51.1.
If an elector does not understand the English language, the returning officer
may allow or appoint an interpreter to translate any statements, questions, or
documents as necessary to allow the elector to vote.
51.2.
The interpreter may not be an elector or member.
51.3.
Before acting as an interpreter, the interpreter shall make a statement in the
prescribed form.
51.4.
Where any elector has required the assistance of an interpreter, the returning
officer shall make a report in the prescribed form.
54.
Advance vote stations
54.3.
The returning officer or his agent may, on the advance voting day, attend with
electors who are shut in, in hospital, or otherwise incapable of physically
attending at a voting station for the purposes of receiving that elector’s
vote. Any votes received from such electors shall be held in a separate ballot
box which is then sealed so that no ballots can be deposited in it without
breaking the seal, and the ballot box must remain like that and be stored in a
secure place until it is opened for the counting of ballots at the close of the
voting stations on election day.
57.
Incapacitated elector at voting station
57.1. The returning officer, at the
request of an elector who is unable to read or is incapacitated by blindness or
another physical condition from marking the elector’s ballot in the usual
manner may, at the elector’s request, mark the vote of that elector on the
elector’s ballot in the manner directed by that elector, and shall immediately
deposit the ballot in the ballot box.
57.2. No candidate or agent shall be
present in the voting compartment at the marking of a ballot under this
section.
57.3. When a ballot has been marked
pursuant to this section, the returning officer shall make a report in the
prescribed form.
79.
Costs of appeal
79.1.
Subject to the appeal arbitrator’s ability to order costs pursuant to section
89.3, the first nation shall be responsible for the payment of the appeal
arbitrator’s fees and associated costs, and for the hearing costs.
81.
Permitted grounds of appeal
81.1.
A candidate or elector who voted in the election, may appeal an election on the
basis that:
81.1.1. the returning officer made an
error in the interpretation or application of the Code which affected the
outcome of the election;
81.1.2. a person voted in the election
who was ineligible to vote and provided false information or failed to disclose
information relevant to their right to vote and their participation affected
the outcome of the election;
81.1.3 a candidate who ran in the
election was ineligible to run and provided false information or failed to
disclose information relevant to the validity of their nomination;
81.1.4 a candidate engaged in conduct
contrary to section 23 and the candidate’s conduct affected the outcome of the
election; or
81.1.5 a candidate was guilty of a
corrupt election practice or benefited from and consented to a corrupt election
practice.
89.
Determination of appeals
89.3
If the appeal arbitrator determines that an appeal was so lacking in merit as
to constitute an abuse of the appeal process he or she may order the appellant
to pay the costs of the appeal hearing or the cost of the affected candidates
or both.
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